Legal Opinion Regarding Commerce Clause

February 7, 2014

AYR, NE- Upon request of the American Cervid Alliance leaders, the ACA’s law firm on retainer has provided the council with their opinion of the Commerce Clause as it relates to states considering the closure of their borders to out of state cervids. After a thorough review, Clint Patty, of the Frieden, Unrein, & Forbes law firm, in Topeka, Kansas, concluded “Given the lack of any scientific basis for favoring in-state cervid producers, it is our opinion within a reasonable degree of legal probability that any action taken by the State of Missouri to close its borders to out-of-state cervids violates the Commerce Clause of the United States Constitution.”

Mr. Clint Patty’s review of the constitutionality of the proposed Missouri border closing on out of state cervids provided the council numerous precedents from Supreme Court cases and analysis of known science for justification of such dramatic action. It is well know Missouri cervid producers have been under fire from proposals and suggestions of closing Missouri borders by wildlife conservation special interests groups.

Two of the ACA Council members, the Missouri Whitetail Deer Breeders & Hunting Ranch Association and the Missouri Elk Farmers Association, have been working diligently with local state legislators to oppose any proposals from state agencies or special interest groups to close their state borders. The grassroots effort has been very effective educating legislators, however, Missouri cervid leaders are still concerned about proposals from their state conservation agencies. Literature and even radio ads from special interests groups contend the closure of state borders would contain the spread of Chronic Wasting Disease.

Other states such as New York and Florida have recently closed their state borders for similar reason, even though the New York Deer & Elk Farmers Association is exhausting all options to block the closure.
The ACA Leaders know the legal opinion is not a guarantee to open state borders nor will prohibit any subsequent proposals of closure, but gives the industry precedent to challenge. “The days of this industry sitting back and watching borders close and regulations increase are over,” said ACA Moderator Eric Mohlman. “Win or lose, policies that are not based on science will be challenged.”

In addition to legal precedent, Clint Patty cited recent events could easily cause the State of Missouri both credibility and legal issues with pending litigation brought by Missouri Attorney General Chris Koster. Just this week, Attorney General Koster filed a lawsuit in the United States District Court in Fresno, California, seeking to strike down a California law regulating the living conditions of chickens. The California law closes California’s borders to eggs from chickens raised in cages that don't comply with California's new size and space requirements. Missouri bases its arguments on the Commerce Clause, arguing that the California law infringes on the interstate commerce protections of the U.S. Constitution by effectively imposing new requirements on out-of-state farmers.

Donald Hill, ACA Councilman representing the Missouri Whitetail Deer Breeders & Hunting Ranch Association, said, “This research just shows the bias used against our industry. Our association and its members are grateful for the legal assistance provided by the American Cervid Alliance.”